Love, Law, and Legacies: Impact of South Africa’s Changing Marriage Laws on Estate Planning

What’s Love got to do with it?
Marriage is a profound commitment, a celebration of love, and for many, a path towards building a shared future. But marriage isn’t just about the present—it’s also about the future. And that’s where estate planning comes into play. In South Africa, the marriage laws are currently being reviewed and rehauled. This article will explore the dynamic and changing world of marriage laws and matrimonial systems in South Africa, and how these shifts impact estate planning for couples across the nation.

Development of Family Laws – Colonialism, Democracy and Beyond
The bonds of marriage generally form the basis of a family. This is reflected in the laws of the country. South Africa inherited colonial legislation regulating family law, based on Canon (Christian religious) laws. This Canon law approach is captured in the Marriage Act 25 of 1961, which only recognises monogamous marriages and regulates aspects of such marriages. Aligned to the Marriage Act is the Divorce Act 70 of 1979 which regulates proceedings for divorce of persons whose marriages are registered in terms of the Marriage Act. Furthermore, in 1984, the Matrimonial Property Act 88 of 1984 was passed, the effect of which was to abolish marital power and set out the property or proprietary regimes available. The property regime applicable in a marriage has consequences for estate planning and is therefore critical in determining how the estate will be distributed especially in intestate estates.

In 1994, South Africa witnessed a transition from apartheid to democracy. This transition impacted on the marriage laws and demanded transformation to reflect the evolving dynamics of modern family relationships, the values of the Constitution and commitment to decolonization of laws.

Currently, South Africa has a smorgasbord of marriage laws. The official state law recognising marriages in South Africa is the Marriage Act 25 of 1961. This is the dominant law on marriage and is based firmly on Canon law which was brought to South Africa in the form of Roman-Dutch law. The Recognition of Customary Marriages Act 120 of 1998 recognises African customary marriages. The Civil Unions Act 17 of 2006 sets out the legislative framework for recognising and providing for the legal consequences of general civil partnerships and includes same sex unions within its ambit. Religious marriages remain statutorily unregulated in South Africa.

Recently, South Africa has sought to rationalise and consolidate the various marriage laws into a single law. This is being mooted in the form of the Marriage Bill, 2022. This Bill seeks to primarily provide for the recognition of marriages entered by spouses regardless of the religious, cultural, sex, gender, sexual orientation or any other belief of the spouses. This means that all types of marriages will now fall under this Bill which seeks to regulate the age, consent, registration and other requirements for a valid marriage together with a reference to the regulation of legal consequences. A criticism against this Bill is that a ‘one-size-fits-all’ approach will not meet the requirements of the diversity of marriage systems that exist in South Africa.

The Matrimonial Property Act is also being reviewed. Considering the significant social change, and to ensure that section 9 of the Constitution is realised in the relationship sphere, the discussion paper reviewing matrimonial property laws makes a variety of proposals. These proposals are made to ensure that legislation around matrimonial property distribution is not discriminatory based on, among others, sex, gender, sexual orientation, race, religion and marital status. This project reflects the intention to regulate the property of all life partnerships, not only those who are married in terms of the Marriage Act, Civil Union Act, and the Recognition of Customary Marriages Act. It must be noted that each marriage system has distinct implications for estate planning, with some couples having to navigate complex legal frameworks.

Money and Marriage
Matrimonial property systems are regulated by the Matrimonial Property Act 88 of 1984. These systems dictate how property is managed during a marriage and what happens to it in the event of divorce or death. Couples registering their marriage have the flexibility to choose one of matrimonial systems set out below:

In Community of Property: This is the default system for couples who don’t specify otherwise. It means that all assets and debts are shared equally between spouses.
Out of Community of Property with Accrual: This system is designed to protect the assets acquired before marriage while allowing for the growth of a joint estate during the marriage.
Out of Community of Property without Accrual: In this system, each spouse maintains their own assets entirely separate from the other.

How are the above regimes applied in the current context of marriages laws? The Marriage Act 25 of 1961 regards the In Community of Property as the default position if no ante nuptial contract has been entered into. The Recognition of Customary Marriages Act 120 of 1998 deals with it differently. In respect of polygynous customary marriages entered into before this Bill is law, then customary law applies as set out in s7(1) of the Matrimonial Property Act. Regarding monogamous customary marriages, the default position is the In Community of Property unless an ante nuptial contract has been entered into. Where a polygynous customary marriage has been entered into after this Bill is law, then consent of court is required to proceed with marriage and parties need to put up a contract (Out of Community of Property) with subsequent wife. The Civil Union Act follows the same position as the Marriage Act in that it regards the In Community of Property as the default position if no ante nuptial contract has been entered into. It must also be noted that according to the Supreme Court of Appeal order, confirmed by the Constitutional Court, in the matter of Women’s Legal Centre Trust v President of Republic of South Africa NO (Case CCT 24/21), Muslim marriages shall be regarded as Out of Community of Property unless there are agreements to the contrary.

Legacies: Impact on Estate Planning
The Estate Planning process involves the structuring of assets in the most tax efficient way to ensure protection and preservation of assets from one generation to the next. Naturally, this means that one needs to plan for what happens with one’s assets upon incapacitation or death and how to ensure that family members and loved ones are taken care of financially. Engaging in estate planning will ensure that assets are distributed according to a person’s intentions upon death, and this normally takes the form of a will or testamentary document. However, the estate of persons who do not make a will is regulated by the Intestate Succession Act 81 of 1987. The Intestate Succession Act is based on the marital regime applicable to the deceased when determining how the estate is to be distributed. Therefore, it is clear how the changing marriage laws and matrimonial systems in South Africa impact on estate planning.

Couples should take the opportunity to structure their affairs in a way that aligns with their unique circumstances. Here are some key considerations for estate planning:
Asset Protection: Couples can now protect their individual assets by specifying which should be excluded from the communal estate. This ensures that personal inheritances or businesses remain intact, even in the event of divorce or death.
Inheritance Planning: With the flexibility of matrimonial systems, couples can plan how their assets will be distributed upon their passing. This allows for a more seamless transition of wealth to heirs and beneficiaries.
Financial Security: The changes in marriage laws provide opportunities for couples to secure their financial futures and safeguard the interests of their loved ones. They can tailor their estate plans to ensure financial stability for surviving spouses and dependents.

They lived happily thereafter …
These legal transformations place the power in the hands of couples, allowing them to craft a future that truly reflects their values and priorities. By understanding the intricacies of matrimonial systems and making informed choices, South Africans can navigate the complexities of love and legacy with confidence. Whether you’re planning to tie the knot or have been happily married for years, these changes ensure that your estate planning is as dynamic and unique as your love story.


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